Posted
by
kdawsonon Monday May 21, 2007 @07:31PM
from the no-meee dept.

corigo writes "Supporters of free and open source solutions have thrown down the gauntlet at Microsoft's feet. Christian Einfeldt of Digital Tipping Point says 'Sue Me First,' and he's not alone. More and more people are signing up and challenging Microsoft to put their lawyers where their mouth is. The open source community is far from running scared. Will Microsoft step up to the plate, or are they just continuing a scare campaign with no real ability to leverage the patents they claim open source is infringing?"

Dingo: You must sue her well, and after you are done with her, you may deal with her as you like... and then... sue me.All: And me. And me too. And me.Dingo: Yes. Yes, you must give us all a good suing.

As the sixth person to sign up on that list, I'm not scared in the least if that was Microsoft's reaction.
What would happen if Microsoft tried to sue us and won? Court precedent would be set giving them leverage to sue Google, Apple, HP, Sun, IBM, all the big dogs that are using open source software. The moment Microsoft tries to sue one or all of us, the above companies would step in for a few reasons:
1. They can nip this thing in the bud rather than letting harmful court precedent get set against them.
2. They get to look like the heroes of the little guy and make Microsoft look like a jackass bully in the process. GREAT PR.
3. Microsoft just plain doesn't have a case in this one. Easy win.
This challenge can't lose. If Microsoft ignores it they're shown to be the liars and bluffers that they are. If Microsoft takes the bait they get smacked down publicly.

I remember stories about McDonalds and Disney taking aggressive action to defend their exclusive rights even against small-time infringers with the justification that refraining to sue could have been construed as abandoning their trademark.
So, if microsoft does not sue these people, would it be tantamount to abandoning their right to sue later, or is it all just a bunch of meaningless hot air?

It's fud vs bca (bravery, certainty and assurance). This is about bed patents rather than good trademarks, so you're just a little off base here. These guys are essentially talking big in the hopes that their big brother (FSF) will step in and cover the checks their asses can't cash. It's kinda childish, but Microsoft has that effect on otherwise normal people.

I remember stories about McDonalds and Disney taking aggressive action to defend their exclusive rights even against small-time infringers with the justification that refraining to sue could have been construed as abandoning their trademark. So, if microsoft does not sue these people, would it be tantamount to abandoning their right to sue later, or is it all just a bunch of meaningless hot air?

IANAL, and you shouldn't rely on this as legal advice, YMMV, etc.:

It might affect their ability to sue the particular people for reasons unrelated to abandonment (statutes of limitations, laches, and various estoppel theories), especially if it can be shown that Microsoft knew about the particular facts that it would allege are violations by the particular users early on and didn't act.

It probably won't affect their ability to sue other people, though.

But trademarks are very different from copyrights, and there is nothing in copyright similar to abandoning a trademark. Trademarks are protected based largely on use, copyrights are not.

Mickey Mouse as a trademark has expired. He's now in the public domain.

No wait... Disney called in a favor from their brown-paper-bag-shills at Congress, who promptly introduced this legislation which kept Mickey from entering the public domain. AFAIAC Disney used Congress to steal it. No wonder Disney grew old and stale: They have no incentive to come up with anything new. http://en.wikipedia.org/wiki/Sonny_Bono_Copyright_ Term_Extension_Act [wikipedia.org] The "Copyright Extension Act" is unofficially known as the "Mickey Mouse Act". How is that for 'corporate sponsorship' gone mad?

Who were the Congressional Shills? Despite the name it wasn't Congressman Sonny Bono, but I can't tell you who did it. This is what sucks about Congress. We get nasty bills passed that take away our rights, but Congressmen are shy to stick their name on it. So while grumbling about this, the DMCA, the Parrot Act, you could be voting for a shill who sponsored it.

How about someone do a web site showing who is a shill and who isn't. Wikipedia doesn't carry this sort of info.

They're getting one hell of a cartload of free publicity, just after the release of their new OS, and projects like the One Laptop Per Child (which runs Linux but does not run Windows) are dependent for survival on orders that have not yet been placed. Intel's legally-questionable pressure on OLPC at the same time as this FUD may be part of a cooperative effort to destroy serious competition in new markets. It wouldn't be the first Wintel effort to crush rivals with anti-competitive actions, if that is what it is.

(I'm looking at OLTP, because that's a worldwide non-Microsoft venture that could seriously dent Microsoft revenue in growing markets and because it's the biggest event due any time soon. Microsoft's FUD is generally not random but very purposeful and has a specific goal in mind. There simply isn't another goal on a comparable scale on any kind of near-term timeframe.)

There are a few other avenues that Linux could be doing well in, but Microsoft is growing faster in the server market despite inferior performance, reliability or security, and that's the only other area Linux and Microsoft have any serious rivalry at this time. Linux could be doing well on the desktop, but not while it is playing catch-up. It would have to invent a whole new metaphor before it could seriously threaten Microsoft in the home market.

Sort of: someone who would be guilty of infringement if the patent claims Microsoft is asserting were true and has reasonable apprehension of a lawsuit could themselves bring suit for declaratory judgement.

It also may be possible that a suit could be brought for defamation by someone adversely affected by the claims; that would be a harder case to advance, but carries the possibility of actual damages.

Microsoft doesn't want to step up the plate - they don't want to solidify their claims. They want to create in the midns of existing and potential Microsoft products that Linux and assorted alternatives are too risky to switch towards. Patents this week, usability next week, compatability the week after. This is not a game about patents, this is a game of unobservable quality and obfuscating the quality determination process. "What if there really are problems with Linux? Maybe it isn't the good solution I've heard it is? Best to stick with Microsoft, the lemon/devil I know".

This may sound like a troll, but it really is not: in my opinion, Linux enthusiasts crying, "sue me first!" creates in the mind of traditional business people the idea that such enthusiasts are risk-seeking. Not everyone wants to be associated with a risk-seeker.

This may sound like a troll, but it really is not: in my opinion, Linux enthusiasts crying, "sue me first!" creates in the mind of traditional business people the idea that such enthusiasts are risk-seeking. Not everyone wants to be associated with a risk-seeker.

On the other hand, if Linux just sat back and let Microsoft dish out the patent threats, companies might not want to be associated with the threat of lawsuits. Damned if they do, damned if they don't, basically.

At least this way, Linux is trying to head the FUD off at the pass, before real damage can be done. And if I was a decision maker, I'd view it as a mark of confidence in a product if they're willing to stand up to Microsoft.

...doesn't mean Microsoft won't go through with them, and doesn't mean they won't be a major PITA for whoever ends up being the target. "Sue me first" is cute but an unwise idea. That said, I doubt it'll make any difference, as I'm sure their lawyers will line up whatever targets are strategically optimal (e.g. highest payoff with best chance of success), not random people on blogs who are asking for lawsuits.

I don't recall anyone, well anyone apart from the odd slashdotter, chuckling when Microsoft got their clock cleaned in the Eolas suit, despite the silliness of the suit, all the prior art and all the support they received from the industry. For a small to medium sized company a patent decision against you could well be the end. So I would say there is very little frivolity involved in facing a patent action.

Actually, I think this is great. People standing up and telling Microsoft to shove it.

For too long Microsoft has bullied and intimidated. They have monopolized, stolen code (remember the Stacker lawsuit?), and tried to dominate the entire world. Sadly, they did pretty well at it.

But now, Linux is, IMHO, ready for the general user and the common desktop. It doesn't require the skills that it once did thanks to Gnome and KDE. For most people, web browsing, reading e-mail, and processing word documents, spreadsheets, and presentations, Linux looks and feels pretty damn close to Windows - but has added enhancements, has better security, and is far cheaper to own.

I'm sure these latest developments, with Dell offering Ubuntu, Vista being bad-mouthed by gamers and office users alike, and open sourcers far and wide mocking Microsoft and it's chair-throwing flunkie, Bill and company are just a wee tad worried.

The open source community should call Microsoft's bluff and file a pre-emptive class action lawsuit. The lawsuit would basically challenge the court to decide whether or not Linux and other open source projects violate Microsoft's patents. This has been done before when a company is under threat of lawsuit, they preemptively ask the court to decide if what they are doing is legal. This removes the cloud of a potential lawsuit so that the threatened company can conduct business. Of course you would want to file the lawsuit in Federal court in San Francisco.

I am a lawyer with a very small civil practice in San Francisco. IMHO, t would be possible to file a declaratory relief action. Almost anyone who has been encumbered by a Microsoft patent threat would have standing to do so. I would be willing to participate in such a lawsuit, obviously, since my name is the first on the TFA "Sue me" list.

In order for a declaratory relief lawsuit to work, we would need to have coordinated action by some of the other large stakeholders whose businesses would be impacted by Microsoft's questionable PR patent campaign against FOSS. That takes time, planning, and money, though.

In the meantime, I wanted to take some action now to see if we could at least get a show of hands of people who doubt Microsoft's questionable PR patent campaign. I believe that few in the FOSS community really believe that Microsoft's purported patent claims have merit. So we probably need to shout really loud, so that the rest of the world can see and hear us. We don't want people to believe that a) We in the FOSS community are doing anything that is illegal, because we're not; or b) that we have doubts about whether or not Microsoft's questionable PR patent claims have merit (they don't, IMHO).

IMHO, we really can't allow Microsoft to dominate the airwaves with its questionable patent claims against us.

MS is just jealous that IBM's stock price almost caught up to MS's. Those evil people at IBM, turning OpenSource into a business model! The Battle Royale will be MS vs. IBM. The good news is that IBM is good at this game and has already played it with SCO. Hmmmm.. what shape SCO is in these days.... can you say "DELISTED"? I knew that you could...:)

from digg..
Much has been written about Microsoft's allegation of patent infringements in Linux (by which I'm sure they mean GNU/Linux;-) ). I don't think Microsoft is the real threat, and in fact, I think Microsoft and the Linux community will actually end up fighting on the same side of this issue.....
And I'm pretty certain that, within a few years, Microsoft themselves will be strong advocates against software patents. Why? Because Microsoft is irrevocably committed to shipping new software every year, and software patents represent landmines in their roadmap which they are going to step on, like it or not, with increasing regularity. They can't sit on the sidelines of the software game - they actually have to ship new products. And every time they do that, they risk stepping on a patent landmine.
They are a perfect target - they have deep pockets, and they have no option but to negotiate a settlement, or go to court, when confronted with a patent suit...
Read the rest here.
http://www.markshuttleworth.com/archives/118 [markshuttleworth.com]

They can't sit on the sidelines of the software game - they actually have to ship new products. And every time they do that, they risk stepping on a patent landmine.

That's not that big a risk. License a patent, pay some damages, buy the competition. They don't really hurt that badly in any of those scenarios. It's when some high-rolling PHB says "What do you have that can do the job of this other software that I heard about?" and they have to say "Nothing." that they really hurt. What keeps them filling their swimming pools with a fresh batch of c-notes every week is that the sheep don't have to know the name of more than one software company.

First they came for the Hackers, and I didn't speak up,
because I wasn't a Hacker.
Then they came for Novell, and I didn't speak up,
because I don't use Novell.
Then they came for the Linux Users, and I didn't speak up,
because I was a Windows user.
Then they came for me, and by that time there was no one left
to speak up for me.

First they came for the Hackers, and I didn't speak up, because I wasn't a Hacker.
Then they came for Novell, and I didn't speak up, because I don't use Novell.
Then they came for the Windows Users, and I didn't speak up, because I wasn't a Windows user.
Now it's nice and quiet. Thank you!:D

Microsoft may well step up but that does not mean they want to.
I believe they are intending to scare the open source community, which will in turn (however subconsciously) affect the future open source development.
Not insulting the open source community's intelligence in any way, i'm just saying when a developer is working on a new feature they're gonna have this threat in the back of their mind and may choose to make less inovative choices due to this threat, no matter how "fuck you" they think they ar

Remember, that in America at least, court cases are generally won by money not truth. On television, people win court cases on merit. Frankly, Micro$oft can throw in a few attorney's to fud things up and confuse the judge, then throw in a bribe or two to close the deal. It really is not relevant if M$ has any patents or not. They have money...like O.J. did.

Remember, that in America at least, court cases are generally won by money not truth. On television, people win court cases on merit. Frankly, Micro$oft can throw in a few attorney's to fud things up and confuse the judge, then throw in a bribe or two to close the deal. It really is not relevant if M$ has any patents or not. They have money...like O.J. did.

Generally, in America, anyone can bitch and complain about any legal decision they don't agree with. They can accuse a Judge of accepting bribes with no

I suggest that anyone who takes up Microsoft's offer of a patent license, henceforth be labeled a 'Stig', in honor of Stig O'Tracy from Monty Pythons 'Piranha Brothers' Sketch

Presenter Another man who had his head nailed to the floor was Stig O' Tracey.
Cut to another younger more cheerful man on sofa.Interviewer Stig, I've been told Dinsdale Piranha nailed your head to the floor.Stig No, no. Never, never. He was a smashing bloke. He used to give his mother flowers and that. He was like a brother to me.Interviewer But the police have film of Dinsdale actually nailing your head to the floor.Stig Oh yeah, well - he did that, yeah.Interviewer Why?Stig Well he had to, didn't he? I mean, be fair, there was nothing else he could do. I mean, I had transgressed the unwritten law.Interviewer What had you done?Stig Er... Well he never told me that. But he gave me his word that it was the case, and that's good enough for me with old Dinsy. I mean, he didn't want to nail my head to the floor. I had to insist. He wanted to let me off. There's nothing Dinsdale wouldn't do for you.

Microsoft doesn't have any interest in suing current Linux users for patent infringement. They are small potatoes. Microsoft just wants to keep current Windows users under their thumb, and they really want to keep the vassals like Dell in line. It's pretty clear that Microsoft has come down from the mountain with the One Commandment for OEMs: 'Thou shall not sell a desktop or notebook system without a Microsoft tax'. Since for Microsoft OEMs, disobeying their lord and master means nearly instant death, they

If a business or government body is not taking due care with the private information they hold on the public which could lead to identity theft then they are at risk of being sued.

1) Demand the business or government body to disclose copies of the anti virus logs for all of their desktops and laptops.
2) Generate a list of all the malware that
a) was cleaned up post infection ( the malware was actually executed and run ) AND
b) exploited vulnerabilities in Microsoft applications and operating system prior to an update fix being made available by Microsoft.

In comparison to MacOSX or Linux based desktop, Microsoft's desktop operating systems and Microsoft's desktop applications face a disproportionally higher risk of being "infected" with hostile malware. Just relying on third party Antivirus software to prop up a Microsoft flagging security record in no way puts you any closer to the level of security that a switch to another vendors desktop platform can provide. ( Just updating to Vista is no guarantee of better security in comparison to another vendors platform )

A business or government body is not taking due care with the private information they hold on the public if they continue to use Microsoft desktop OS environments or Microsoft desktop applications. That is your credit card data, banking details , health care info and social security information. If switching to Linux or MacOSX based desktops would greatly reduce the risk of further intrusion why should not organizations be "encouraged" to make the move.

If anyone's customers are at greater risk of being sued it is Microsoft's own customers that face the greatest risk.

In legal matters, The Free Software Foundation [[http://www.techliberation.com/archives/041419.ph p doesn't want money; they want compliance]]. Microsoft, on the other hand, doesn't want compliance; they want money. It should be no surprise, then that they are not interested in helping the FOSS community to come back into compliance with their patents; any violation could mean revenue.

Of course, "could" is just a possibility. If they actually ever went to court, software patents might be overturned in general, particular patents could be invalidated specifically, claims made with valid patents could be found non-infringing, the community would likely recode the claims found infringing to steer clear of the patent, AND Microsoft would still have to deal patent infringement countersuits launched in retaliation.

It is far better for them attempt to profit from vague fear than vague fact.

Hey, dontcha just love the Microsoft PR machine!!! Here we are on Slashdot, talking about Microsoft's PR prowess, and Microsoft is kind enough to come along and give us a demonstration! On my screen, I am seeing advertisements for a kinder, gentler Microsoft, one that makes a donation to some unknown charity every time you use Microsoft IM. Oh, that's so sweet and cuddly! Just ignore those patent threats, boys and girls! We didn't mean any harm!

This is exactly my point, and it's why I offered to have Microsoft sue me. Microsoft is doing an excellent job of PR, and we need to draw public attention to two basic facts: 1) Microsoft's patent claims are unmeritorious; and 2) Microsoft is making vague patent threats because self-censorship is cheaper and more powerful than filing patent infringement lawsuits that only work in the US, if they work at all.

If you are not seeing the kinder, gentler IM donations on your screen, you can see them here on the Digital Tipping Point Flickr account, at least until Microsoft buys Yahoo, at which point you will see them only on our Google Picasa account:

Note to Microsoft counsel Brad Smith, Esq.: If you need documentary proof for your trial against me that I use Ubuntu GNU Linux, you can use this screenshot, which I am hereby vouching is a true and accurate shot depicting my Edgy Ubuntu desktop which, coincidentally, I am using to produce the Digital Tipping Point film. Among other things, the DTP film will suggest that Microsoft, like RCA and IBM before it, is facing an "innovator's dilemma" that will disrupt its current monopolistic business model. The funny thing is that the same market forces that propelled Microsoft to hammer IBM is now going to help IBM return the favor, this time using GNU Linux and OpenOffice.org. But I guess you knew that already, Sir Brad, because that is why you have been filing patents. You once worked at IBM. You learned well. Here is that proof you will want if you ever do file a case against me:

I just had a good laugh at the expense of the people signed up for this. Either they don't care that their addresses are going to get harvested, or they're working under the delusion that obfuscation techniques like "jim at website dot com" can't be beaten by some very simple Perl.

I don't care that my address is going to be harvested. I post it without obfuscation all over the web. I use Apple Mail (which has a spam filter) as a POP3 client for Gmail (which also has a spam filter). Every week, only about one spam trickles through Gmail, and Apple Mail always catches it. And neither has ever marked a legitimate email as spam.

Also, I think it makes more of a statement to provide my email address.

If MS had strong infringement claims, they would have named them years ago. The fact they're pulling a SCO-esque FUD campaign means that these supposed infringements are questionable at best, and can be challenged, at which point prior art will probably be found. If not, they can be coded around. In all cases, MS is pretty much spent once it's named these supposed infringements, which is why they won't do so publically. Their strategy is a combination of public FUD and private protection-money shakedowns. Calling their bluff is exactly the right thing to do.

Microsoft isn't going to sue some open source hobbyist that doesn't really have much to sue for. They will sue if anyone, with open or closed source products, poses an actual threat to their monopoly. It would be impossible to build any type of new software without infringing on some of Microsoft patents. Whether or not they would be upheld in court is a different matter, but it would be enough to prevent a small group of programmers from threatening their cash flow.

If these people actually send letters to MS asking for a lawsuit or precise disclosure of the infringements, then MS has three choices:1) actually must sue them2) disclose what specific code infringes3) lose the ability to enforce their patent rights against people who requested one of 1 or 2.4) Profit!

Now, I know that patents normally don't act this way, but in this case they do. MS has been publicly stating that the software infringes. If somebody asks MS directly what specific code is infringing, and MS is not forthcoming, that will prevent them from winning a later suit against that person. Microsoft must make an effort to resolve the situation, or their later suits will be dismissed according to the doctrine of laches.

So if you are confident that your software doesn't infringe on any valid patents, go ahead and send MS a registered letter asking for the details of the infringement.

these supposed infringements are questionable at best, and can be challenged, at which point prior art will probably be found.

For many of their claims, I think this is the likely scenario.

If not, they can be coded around.

Everyone keeps trotting this one out, but I don't think it's going to be that simple. There are likely going to be claims that don't fail prior art, but cannot easily be "coded around". VFAT and Samba come to mind...

You mean rewrite or drop infringing projects? Sounds like cleaning house to me. Someone said something about the likelihood that Samba would hit in this and how that would actually be beneficial. I'm kind of seeing these developments like that now myself. Samba is awesome because it lets us play with our Windows systems nicer. But the Windows technology we are trying to play with is pretty crumby really, maybe Linux *and* Windows users would benefit from someone getting an itch to scratch?

Have fun with having any possible income you may ever in the future make secured automatically for Microsoft. Doesn't that sound like fun, being permanently poor with little to no chance to ever get out of it?

having any possible income you may ever in the future make secured automatically for Microsoft.

well, not if he lives (now, or in the future) in Florida, California, overseas, or a few others.

If I did it [wikipedia.org] Legal experts theorized that Simpson might be able to avoid paying the Goldmans or Browns any money. "I think it's going to be difficult if [Simpson] arranges to have [book profits] deposited abroad," said lawyer Tom Mesereau, who successfully defended Michael Jackson in his child molestation trial in 2005. "

Are you an MS employee paid to post on sites like this to try to "improve" their image? Seriously? I would like to know. How are the "stakes pretty damned high"? If MS had any real, tangible claims they would have not made this FUD release. Instead we would have heard in the news that MS sues x,y and z.

1 - no im not2 - regardless of who wins, the stakes ARE high. We are talking about basic freedoms here. Not just some IP thing. Think outside the box here.3 - time will tell who wins i dont think its going to blow over this time. Microsoft on one side trying to screw us, RIAA on the other. Its going to get ugly before it gets better.

you're just a little confused. Patents don't have that restriction, it's time based. You're thinking of trademarks and calling them copyright. A trademark is a brand, a copyright is something written, and a patent covers an invention. The question is "Is software more invention or more of a written work?". As someone that has written software I believe it is something written or authored.

You do not lose patents by not enforcing them , that's trademarkls. Really, how difficult is it to educate yourself a little bit about intellectual property, even just a little bit? Most of the stupid stories and subsequent comments would cease to exist if this would occur. Until then, please do us all a favor and stop posting on these stories until you've become more familiar with the issue. You can do your small part to make the dream of intelligent Slashmoneky posts a reality.

It may be true that Microsoft can run any individual open source company into the ground, but if every company that uses linux were to contribute to the legal fund it would be a real fight.

You don't even need that. You can steamroll over smaller parties with an expensive legal team, but after a certain amount of money the sides are basically equal, because at that point you've already hired all the lawyers and support staff you're going to need. Red Hat, for example, could afford as good a legal team as M

Now they seem to want to fight us.Just like good politicians and good lawyers: you provoke a fight and make the opponent so angry that people will just forget who began the whole thing and tell them hey, they wanted to fight, no wonder we try to defend ourselves. Thing is, this is a very well proven tactic, and we all should just try to clearly avoid it, and try not to make this "sue me first" outburst look like FOSS wanted to challenge Microsoft in the first place. The FOSS world just needs to be very car